March 04, 2010

Dawn Johnsen Nomination Heads Back to Senate

Repeating arguments that they've been making for a year, members of the Senate Judiciary Committee voted along party lines today to move forward on Dawn Johnsen's nomination for a top position in the U.S. Justice Department.

The committee endorsed Johnsen 12-7 for assistant attorney general in charge of the Office of Legal Counsel, an office that handles sensitive questions of constitutional law and was at the center of interrogation policy during the Bush administration. Today’s vote came almost a year after the committee first weighed in on Johnsen — a sign of how divisive her nomination has been.

Johnsen, a law professor at Indiana University at Bloomington, still has a long way to go if she is to be confirmed. Republicans are likely to block her nomination on the Senate floor, as they did last year, because of her views on national security and abortion, and it’s not clear that Democrats have the 60 votes they would need to force a confirmation vote. The Office of Legal Counsel has not had a Senate-confirmed leader since July 2004, in part because Democrats blocked Bush nominee Steven Bradbury for four years.

In an hour-long debate today, senators painted contrasting portraits of Johnsen as either a radical liberal or a respected academic.

“No one on the Republican side has questioned Dawn Johnsen’s qualifications to hold this office,” said Sen. Dick Durbin (D-Ill.), referencing her service in the Office of Legal Counsel during the Clinton administration. In an attempt to rebut criticism of Johnsen’s time as legal director of NARAL Pro-Choice America, from 1988 to 1993, Durbin noted that Johnsen has taught Sunday school and is a mother of two.

Sen. Jeff Sessions (R-Ala.) said that Johnsen would be too hesitant to apply the laws of warfare to terrorism suspects — an issue that he said has renewed urgency after the attempted Christmas Day airline bombing over Detroit. “We are at war, and to have any doubt about that in the person taking over this position is very troubling,” Sessions said.

Senators sparred over one answer, in particular, that Johnsen gave them last year. In response to a question from Sen. Arlen Specter (Pa.), then the committee’s top Republican, Johnsen wrote that “we are at war,” but she added that lawyers need to be precise about what that war encompasses — “Al Qaeda, or our conflicts in Iraq and Afghanistan,” she wrote. Click here (PDF) and scroll to Question 14 for Johnsen’s full answer.

Sen. Dianne Feinstein (D-Calif.) said Johnsen should be confirmed based on her direct answers to other questions and on her qualifications. “This is a very brilliant woman. She has written some very strong writings. She happens to oppose the concept of the unitary executive, which many of us do,” Feinstein said.

For Republicans, the hearing was also a chance to defend two former OLC lawyers who worked on memos about interrogation: Jay Bybee, a former assistant attorney general now a judge on the U.S. Court of Appeals for the 9th Circuit, and John Yoo, a University of California at Berkeley law professor.

Sen. Orrin Hatch (R-Utah) said that Bybee and Yoo have been treated shabbily. “They’re two brilliant guys,” he said. “They wrote an opinion that people disagree with, and that I think could have been written better. On the other hand, they’re both excellent people, they both worked with this committee, and they’re both respected in the law.”